Reclaiming the 14th Amendment

Equal Justice Society, headed by an old friend and mentor, Eva Paterson, is a national strategy group heightening consciousness on race in the law and popular discourse.  EJS seeks to restore race equity issues to the national consciousness, build effective progressive alliances, and advance the discourse on the positive role of government.

Last week, Reggie Shuford, EJS's Director of Law and Public Policy, wrote an important and visionary op-ed entitled Reclaiming the 14th Amendment, which was published in the Daily Journal, California's largest legal newspaper.  Shuford persuasively argues that the 14th Amendment, which was intended to protect blacks from discrimination and violence after the Civil War, has "failed to keep pace" with the kinds of subtle, implicit, and unintentional racial bias of today.

Dilution of the 14th Amendment stems from a series of U.S. Supreme Court decisions, beginning in the mid-1970s, which established and solidified the "intent doctrine," a near-impossible standard which requires those suffering from the impact of discrimination to prove the racial inequality was intentional.  EJS plans to pursue a litigation and public policy strategy to dismantle or at least reformulate the intent doctrine in order to reclaim the 14th Amendment as "a tool for securing justice."  Below is Shuford's article which explains their ambitious and innovative ideas for doing so. 

Reclaiming the 14th Amendment

by Reggie Shuford

Daily Journal 

The 14th Amendment isn’t what it used to be.

Enacted in 1868, the 14th Amendment was intended to protect Blacks from the violence and inequality that arose after the Civil War. Just over a decade earlier, the U.S. Supreme Court had decided Dred Scott v. Sandford, ruling that all people of African ancestry - slaves and those who were free - could never become U.S. citizens and, therefore, could not sue in federal court. Confederate state laws during that period also barred Blacks from serving on juries, voting, leasing or owning land, or entering professions. In contrast, the 14th Amendment guaranteed African Americans the right to citizenship, and the privileges and immunities that attach to citizenship. The amendment’s Equal Protection Clause would later become the basis for the Supreme Court’s 1954 ruling in Brown v. Board of Education, which ended the doctrine of “separate but equal.” 

Today, in the age of Obama, racism is by and large not of the explicit variety. It is not the kind with water fountains that restrict access only to certain races, or the kind that explicitly withholds the right to vote from individuals based on the color of their skin. Today, discrimination or bias is far more subtle, even unconscious, and their effects sometimes unintentional. The problem, however, is that equal protection jurisprudence has failed to keep pace with the way discrimination is now practiced and experienced in contemporary American society. Click here to read the entire article.